Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion and Affidavits (Affirmations) Annexed 1, 2 Opposing Affidavits (Affirmations) 3, 4 Reply Affidavits (Affirmations) 5 Following a trial in this medical malpractice action, Dr. Bala K. Ravi, M.D. (defendant) moves for an order: (a) pursuant to CPLR §2221, renewing defendant’s motion made at the close of plaintiff’s proof to dismiss plaintiff’s claims against him and for a verdict in his favor, pursuant to CPLR §§4404 and 4406, on the grounds that plaintiff failed to prove, as a matter of fact and law, any cause of death of the plaintiffs stillborn child, attributable to any act or omission on the part of the defendant; (b) setting aside the verdict and granting judgment for defendant, pursuant to CPLR §4404, on the grounds that the verdict was contrary to the weight of the credible evidence, or in the alternative, granting a new trial; (c) setting aside the jury’s verdict as excessive and inconsistent, and granting remittitur and reducing the jury award (d) alternatively, pursuant to CPLR §4404, granting a new trial in the interest of justice for errors which occurred during the trial DECISION/ORDER FACTS On November 30, 2011, plaintiff, a 20-year-old pregnant woman, presented to the clinic at Wyckoff Heights Medical Center (Wyckoff), where a sonogram was performed (Plaintiff’s Affirmation in Opposition 6). Plaintiff had received the majority of her prenatal care at Woodhull Hospital (Id). Based on the due date she reported (December 11, 2011), “the weight on the sonogram of only five pounds placed the fetus in the first percentile for size” (Id). Plaintiff “was instructed to go across the street” to the hospital for further evaluation (Id.). On November 30, 2011, plaintiff was admitted to the [l]abor & [delivery floor at Wyckoff, where she received treatment from defendant, Dr. Ravi (Id.). Upon admission, "her assessment included potential IUGR (intra-uterine growth restriction) and preeclampsia" (Id.). From 7PM on November 30, 2011 until approximately 2 a.m. on December 1, 2011, plaintiff "was under continuous fetal monitoring" (Id. at 8). At 2.a.m. on December 1, 2011, plaintiff was moved from the labor & delivery floor to the maternity floor, where "[s]he was monitored briefly, but there was no fetal monitoring after 3:30 a.m.” (Id.). At about 8:00 a.m. on December 1, 2011, the Wyckoff chart documents that plaintiff informed hospital staff that she felt her baby kick (Id.; Wyckoff chart at 325, annexed as Exhibit A to plaintiffs opposition papers). At about 9:00 a.m. on December 1, 2011, “a nurse attempting to monitor the baby found no heartbeat and, after several other attempts by other staff,” “intra-uterine fetal demise (IUFD)” “was diagnosed” (Plaintiffs Affirmation in Opposition 8). Plaintiff’s labor was induced, and she delivered a dead male fetus on December 3, 2011, weighing 5 pounds, 7 ounces (Id.). THE TESTIMONY In support of his motion, defendant annexed portions of his own trial testimony, the trial testimony of plaintiff, plaintiff’s expert, Dr. Cardwell, plaintiff’s expert, Dr. Fayer, and defendant’s expert. Dr. Prince. In opposition to defendant’s motion, plaintiff annexed portions of the trial testimony of Dr. Ravi, Dr. Cardwell, and Dr. Prince. Dr. Ravi admitted that based on plaintiffs due date of December 11, 2011, the fetus was “in the bottom one percent size-wise” (Dr. Ravi’s Trial Transcript pg. 142, lines 1-4). However, he also stated that “there were three different sources of due dates” in this case (Id. at 234, lines 10-12). Dr. Ravi testified that he decided to move the plaintiff from the labor & delivery floor to the maternity floor at 2 a.m. on December 1, 2011, even though there was no continuous fetal monitoring on the maternity floor, and he had not received any of the plaintiff’s records from Woodhull Hospital (Id. at 142, lines 7-25). He indicated that based on the information documented in plaintiffs chart, the fetus was not in any “immediate danger” during plaintiffs hospital stay (Id. at 233, lines 11-15). However, he acknowledged that the fact that a pregnant woman feels her baby kicking does not necessarily indicate that the fetus is not in distress (Id. at 87, lines 20-25). Dr. Ravi testified that he did not deviate from the standard of care during the course of plaintiff’s treatment (Id. at 233, lines 18-25; at 234, lines 1-2). Dr. Cardwell, a board-certified OB/GYN and maternal fetal medicine specialist, testified that Dr. Ravi deviated from the standard of care during his treatment of plaintiff by failing to induce her labor upon admission to Wyckoff, and by transferring her from the labor and delivery floor to the maternity floor (Dr. Cardwell’s Trial Transcript pg. 298, lines 3-7, 21-25; at 302, lines 19-25). Dr. Cardwell opined that plaintiffs fetus had intra-uterine growth restriction (IUGR) based on the sonogram taken at Wyckoff, and the standard of care required that the baby be delivered to avoid fetal demise (Id. at 308, lines 6-11; at 306, lines 1-5; at 314, lines 12-23; at 316, lines 3-6). Further, he stated that induction of labor posed virtually no risk to the baby, and disagreed with Dr. Ravi’s testimony that more than one sonogram was needed to diagnose IUGR (Id. at 306, lines 6-9; at 314, lines 12-19). Dr. Cardwell also opined to a reasonable degree of medical certainty that plaintiff should have been diagnosed with preeclampsia based on her high blood pressure and the presence of protein in her urine, and that her labor should have been induced due to this condition (Id. at 302, lines 19-22; at 307, lines 19-24; at 308, lines 9-11). Dr. Cardwell testified that the failure to monitor plaintiff, and/or induce her labor “was a substantial factor in causing the death of the baby,” based on the fact that both intra-uterine growth restriction and preeclampsia “can cause complications such as sudden fetal death” (Id. at 320, lines 6-15). He indicated that plaintiff “was not continuously monitored for about five to six hours until” the baby was found to be dead (Id. at 320, lines 16-18). Had she been continuously monitored, Dr. Cardwell stated that the “health care providers” would have been able to see fetal distress, and “timely” “intervene[d]” by performing a Caesarean section (Id. at 320, lines 22-25; at 321, line 1). Dr. Cardwell maintained that had she either been continuously monitored, or induced when she was admitted, “ the baby would have been born alive” (Id. at 320, lines 16-21). He concluded that the cause of death was fetal growth restriction and preeclampsia, and that there was no evidence that the baby’s death was caused by an umbilical cord prolapse or chorioamnionitis (Id. at 321, lines 6-11; at 332, lines 14-25; at 333, lines 1-2; at 335, lines 2-9). Dr. Prince, a board-certified OB/GYN, testified that he disagreed with Dr. Cardwell’s opinion that IUGR should have been diagnosed based on the sonogram from November 30, 2011 (Dr. Prince’s Trial Transcript pg. 567, lines 14-15; at 576, lines 5-10). He based his conclusions on the measurements in the sonogram report which were “consistent” with a 34-week pregnancy, as well as other values in the report, including the placenta grade, fetal heart rate, S/D ratio, amniotic fluid index (AFI), and biophysical profile (Id. at 576, lines 18-19; at 577, lines 11-12, 18-25; at 578, line 1; at 579, lines 6-7, 17-18). Dr. Prince opined that the fetal heart rate of 140 beats per minute was normal, the S/D ratio of 2.3 was normal, “suggest[ing]” that the “ placenta [was] working perfectly well,” the AFI of 16.3 was normal, and the biophysical profile of 10/10 was normal (Id. at 577, lines 21-22; at 579, lines 2-4, 5, 12-13; at 580, lines 18-21). Dr. Prince testified that these values were inconsistent with a diagnosis of IUGR (Id. at 581, lines 14-25; at 582, lines 1-15). Further, Dr. Prince maintained that the estimated gestational age of 38 weeks and the estimated weight of 5 pounds, did not require a diagnosis of IUGR, as the actual weight could be 15 percent more or less than the estimated weight (Id. at 583, lines 8-18). Dr. Prince concluded that Dr. Ravi did not deviate from the standard of care during his treatment of the plaintiff, based on the conflicting information he received regarding the plaintiffs due date, and that he acted appropriately by admitting plaintiff and monitoring her condition (Id. at 587, lines 7-25). He opined that if the plaintiff “was in fact [only] 34 weeks” pregnant, inducing her labor could have resulted in “brain bleeds,” and “[p]roblems with lung maturity” (Id. at 588, lines 6-9). Dr. Prince testified that Dr. Ravi did not deviate from acceptable medical practice by transferring plaintiff from the labor and delivery floor to the maternity floor, based on her biophysical profile often out of ten, “a reassuring non-stress test with a normal baseline,” and the fact that she had been continuously monitored for several hours, and everything was normal (Id. at 591, lines 14-15; at 592, lines 1-10; at 593, lines 14-15). He concluded that “[t]here was no reason to assume that [plaintiff] could not go to an every eighth-hour monitoring schedule” (Id. at 593, lines 18-19). Dr. Prince testified that the medical examiner’s report stating that the baby was “well-nourished” is inconsistent with a diagnosis of IUGR, and that the pathology report of the placenta documenting that the placenta weighed 484 grams supports the medical examiner’s opinion that the cause of death was chorioamnionitis (Id. at 595, lines 1-6, 11-17; at 596, lines 3-7). Plaintiff testified that following the stillbirth, she had the baby’s remains cremated, and keeps his ashes in an urn in her home (Plaintiffs Trial Transcript pg. 446, lines 3-15). She received psychological treatment from a therapist for two years (Id. at 448, lines 22-25; at 450, lines 1-12). Plaintiff acknowledged that she had two children following her first child’s death, but stated that she still grieves his loss, and that she was more “nervous” during the two pregnancies that followed (Id. at 446, lines 16-25; at 447, lines 1-24; at 448, lines 5-21). Further, she indicated that the loss of her first child has affected her parenting of her two living children, in that she is “overprotective” (Id. at 447, line 25; at 448, lines 1-4). Dr. Fayer, a board-certified psychiatrist, testified that he evaluated plaintiff on two occasions: once in May 2018, and again at some point in 2021 prior to the trial (Dr. Fayer’s Trial Transcript pg. 470, lines 12-16; at 484, lines 1-3). At the first visit in May 2018, Dr. Fayer diagnosed the plaintiff with major depressive disorder after seeing her for two hours (Id. at 470, line 21; at 482, line 2). He testified that the stillbirth of her son “was a substantial factor in causing [her] depression” (Id. at 482, lines 5-10). At the second visit in 2021, Dr. Fayer evaluated plaintiff for an hour-and-a-half, and he concluded that she no longer suffered from major depressive disorder (Id. at 484, lines 8, 15-17). However, he testified that she would continue to grieve for “[p]robably another ten years” (Id. at 487, lines 1-10). After due deliberation, the jury returned a verdict in favor of the plaintiff, finding that Dr. Ravi “departed] from good and accepted medical practice by failing to expedite delivery by inducing labor in plaintiff, Claritza Padilla on November 30, 2011,” and that this departure was a “substantial factor in causing the death of plaintiff, Claritza Padilla’s fetus” (Verdict Sheet, annexed as Exhibit E to defendant’s motion papers). Further, the jury also found that Dr. Ravi “departed] from good and accepted medical practice by transferring plaintiff’ “from labor and delivery and discontinuing continuous fetal monitoring on December 1, 2011,” and that this departure was a “substantial factor in causing the death of plaintiff s” “fetus” (Id.). The jury awarded $2,000,000 for plaintiffs past pain and suffering from December 1, 2011 to the date of the jury’s verdict, and awarded $500,000 for plaintiff’s future pain and suffering for a period of fifty years (Id.). LAW/ANALYSIS Pursuant to CPLR §4406, a party may only file one post-trial motion, which must include “every ground for post-trial relief’ (CPLR §4406). CPLR §4404(a) provides that “upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, [or] in the interest of justice” (CPLR §4404(a)). A court may grant “[a] motion to set aside a jury verdict and for judgment as a matter of law” “only if there is no valid line of reasoning and permissible inferences which could possibly lead a rational jury to the conclusion reached on the basis of the evidence presented at trial” (Hollingsworth v. Mercy Med. Ctr., 161 AD3d 831, 832 [2d. Dept. 2018]; Nicastro v. Park, 113 AD3d 129, 132 [2d. Dept. 1985]). To prevail in a medical malpractice case, plaintiff must prove “that the defendant deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury” (Hollingsworth, 161 AD3d at 832). In order “[t]o establish proximate cause, the plaintiff must demonstrate sufficient evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s deviation was a substantial factor in causing the injury” (Daniele v. Pain Mgt. Ctr. of Long Is., 168 AD3d 672, 675 [2d. Dept. 2019]). Further, the “plaintiffs evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant’s act or omission decreased the plaintiffs chance of a better outcome or increased his injury, as long as evidence is presented from which the jury may infer that defendant’s conduct diminished the plaintiffs chance of a better outcome or increased his or her injury” (Id.). Although defendant argues that plaintiff failed to establish proximate cause at trial, it cannot be said that “there [was] no valid line of reasoning and permissible inferences which could possibly lead a rational jury to the conclusion reached on the basis of the evidence presented at trial” (Hollingsworth, 161 AD3d at 832). At trial, Dr. Cardwell testified that plaintiff had severe IUGR, and preeclampsia, and based these conclusions on evidence in the Wyckoff chart. He also testified that there was no evidence of either cord prolapse or chorioamnionitis, and explained his reasoning for these conclusions. Dr. Cardwell concluded that Dr. Ravi deviated from the standard of care by failing to induce plaintiff’s labor and by transferring her from the labor and delivery floor, where she was continuously monitored, to the maternity floor, where she was monitored less frequently, and that these deviations were a substantial factor in causing the fetus’s death. Based on this testimony, the jury “rationally could have concluded” that Dr. Ravi deviated from the standard of care during his treatment of plaintiff, and that his departures “were a proximate cause of the plaintiff’s injuries” (Id.). Accordingly, defendant’s motion for judgment notwithstanding the verdict is denied. A court “should not” “set aside” a jury verdict “as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” (Id.; Nicastro, 113 AD2d at 134). In cases where “conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion and reject that of another expert” (Hollingsworth, 161 AD3d at 832; Lovett v. Interfaith Medical Center, 52 AD3d 578, 580 [2d. Dept. 2008]). Although Dr. Cardwell’s testimony conflicted with Dr. Prince’s testimony, the jury’s “findings” “were based on a fair interpretation of the evidence,” and “it was the province of the jury to determine the experts’ credibility” (Id.). Accordingly, defendant’s motion to set aside the jury’s verdict as contrary to the weight of the credible evidence is denied. A court may “set aside” a jury verdict as excessive if the “award” “deviates materially from what would be reasonable compensation” (Glynn v. Altobelli, 181 AD3d 567, 570 [2d. Dept. 2020]). In this case, the jury awarded $2,000,000 for plaintiffs past pain and suffering, and $500,000 for her future pain and suffering over a fifty-year period. Based on the testimony presented indicating that plaintiff had to carry a dead fetus for two days, that she sought psychological treatment after the stillbirth, and the conclusion by Dr. Fayer that she would be grieving at least another ten years, the Court is not persuaded that the jury’s award was excessive. Further, two comparable cases to this matter suggest that the jury’s award did not “[deviate] materially from what would be reasonable compensation” (Id.). In Ferreira v. Wyckoff Heights Medical Center, 24 Misc.3d 91 [2d. Dept. 2009], the Appellate Division, Second Department, affirmed the trial court’s decision not to reduce the jury’s verdict of $1,000,000 for plaintiffs past pain and suffering, where plaintiff went into premature labor at home when she was 32 weeks pregnant, and the baby died (Id. at 96-97, 101-102). In Wilson v. Finkelstein, Index No. 3314/2015 [Sup Ct, Kings County 2019], the trial court denied defendant’s motion to reduce the jury’s verdict of $ 1.5 million for pain and suffering and emotional damages, where defendant inaccurately diagnosed plaintiff as having an ectopic pregnancy when she was five weeks pregnant; she was given Methotrexate, and subsequently terminated the pregnancy after being advised by several doctors that the Methotrexate she ingested causes birth defects (Id. at 2-3, 10; Wilson v. Finkelstein, 2019 WL 1959387, at *1 [Sup Ct, Kings County 2019]). Although the jury awarded a lower amount in both the Ferreira and Wilson cases, Ferreira was tried fifteen years ago, and the plaintiff in Wilson was in her first trimester. It is noted thar both cases did not involve the plaintiff carrying a dead fetus for two days. Therefore, the Court declines to reduce the jury’s verdict as excessive. Accordingly, defendant’s motion to set aside the verdict as excessive is denied. The Court has discretion to set aside a verdict, and order a new trial in the interest of justice for “errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” (Heubish v. Baez, 178 AD3d 779, 780 [2d. Dept. 2019]). In determining whether to grant this motion, the “[t]rial [j]udge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his or her own common sense, experience and sense of fairness rather than to precedents in arriving at a decision” (Id.). Defendant argues that the Court erred by giving a charge on Life Expectancy, “prompting] the jury to award a future damages amount wholly unsupported by any proof,” and by failing to include defendant, Wyckoff on the Verdict Sheet (Defendant’s Affirmation in Support 2). As discussed above, the jury’s award on future damages was supported by the testimony of plaintiff and Dr. Fayer, and the Court did not err by giving a charge on Life Expectancy. Although defendant claims that Wyckoff was not included on the Verdict Sheet, the Court notes that Wyckoff was still listed in the caption on the Verdict Sheet, but there were no questions pertaining to any deviations or departures by Wyckoff. The parties stipulated on the record that Wyckoff was vicariously liable for Dr. Ravi’s conduct (Trial Transcript pg. 558, lines 8-13; at 559, line 1). As Wyckoff is only vicariously liable for the acts or omissions of Dr. Ravi, and counsel did not allege any independent deviations from the standard of care by Wyckoff, the Court did not err by not including Wyckoff in the questions on the Verdict Sheet. The Court also specifically informed the jury while giving instructions on the Verdict Sheet, that Wyckoff was liable as a matter of law if they found that Dr. Ravi deviated from the standard of care, and that his deviations were a substantial factor in causing the plaintiffs injuries (Trial Transcript pg. 783, lines 14-20). Under the circumstances, a new trial in the interest of justice is not warranted, and defendant’s motion is denied in its entirety. This constitutes the decision and order of the Court. Dated: May 11, 2022
